Wills

Question 1

Will Execution Requirements

Answer 1

Execution of a valid will requires

1) writing concerning distribution of property upon death
2) signed by testator or someone else at his direction in his presence
3) witnessed by 2 disinterested individuals both present at the same time
4) witnesses sign during testator’s lifetime, and
5) witnesses understand they are signing the testator’s will

After Jan 1., 2009, a will that fails to comply with witnessing requirements may be admitted if clear and convincing evidence is produced that the testator intended the doc to be her will

Question 2

Validity of a Will under CA Law

Answer 2

A will in CA is valid if valid under

1) CA law
2) law of the state where will was executed, or
3) law of state where testator was domiciled @ death

Question 3

Holographic Wil or Codicil

Answer 3

A holographic will is handwritten and meets signing requirements, but fails to comply with witnessing requirements.

In CA, the material terms must be in the testator’s handwriting. Material terms are the names of the beneficiaries & the gifts they’ll receive. Holographic will doesn’t need to devise the entire estate. The undevised portion will pass through intestacy.

Lack of date doesn’t invalidate the will unless:

1) there’s an issue w/testamentary capacity, OR
2) possibiltiy that two wills that are to be probated are inconsistent. Instrument will be invalid as to inconsistent portion

Question 4

Modification of a Will by Codicil

Answer 4

Must be intent to revoke a will through codicil.

Codicil = instrument made after will is executed that modifies/revokes will. Must satisfy same will formalities. Courts will consider original will to be executed on same date as valid codicil.

Question 5

Acts of Independent Significance

Answer 5

A court will use independent acts of significance to fill in the gaps of a will.

Question 6

Incorporation by Reference

Answer 6

A document can be incorporated into a will if it

1) existed at time will was executed
2) sufficiently described in the will, and
3) testator intended to incorporate it

Question 7

Testator Gift of CP & SP

Answer 7

Testator can only gift his share of CP.

Married testator can devise any SP she owns.

Question 8

Revocation by Physical Act

Answer 8

A will is revoked by physical act if

1) testator intended to revoke will AND
2) will is burned, destroyed, torn, or cancelled by the testator.

A duplicated will is also revoked if one of the duplicates is revoked by physical act.

Question 9

Revocation by Subsequent Instrument (Will or Codicil)

Answer 9

A testator can revoke a will by subsequent valid will or codicil.

Question 10

Revocation by Divorce

Answer 10

In CA, gifts to a spouse are revoked upon divorce.

Question 11

Dependent Relevant Revocation

Answer 11

Doctrine that cancels a revocation testator made under a mistaken belief of law or fact.

Applies when testator would not have revoked BUT FOR mistaken belief that a different will would be valid

Question 12

Revival of Revoked Will & Republication by Codicil

Answer 12

Will revoked by physical act will be revived if testator shows intent for revival.

Will revoked by subsequent instrument can be revived if testator republishes the instrument

Question 13

Testamentary Capacity

Answer 13

To have sufficient capacity to execute a will, a testator must be

1) someone at least 18 YO,
2) who understands the nature and extent of her property and
3) natural objects of her bounty

Appointment of a conservator doesn’t prove lack of capacity.

Question 14

Interested Witness

Answer 14

Any gifts to interested witnesses are presumed invalid., unless witness can overcome presumption.

Interested witness only takes intestate share

Question 15

Undue Influence

Answer 15

Occurs when a person exerts influence that overcomes testator’s free will and judgment

Prima facie case:

1) testator weakness (physical, mental, financial) that makes him susceptible to influence
2) wrongdoer had access to testator & opportunity to exert influence,
3) wrongdoer actively participated in drafting will, and
4) unnatural/unexpected result

WAPR!

Affected provision is invalid

Question 16

Common Law Presumption of Undue Influence

Answer 16

Established if

1) confidential relationship existed b/w testator & wrongdoer
2) wrongdoer actively participated in drafting will, and
3) unnatural result

Affected provision is invalid

CAR!

Question 17

CA Statutory Presumption of Undue Influence

Answer 17

Established if testator makes donative transfer to

1) person who drafted will
2) care custodian
3) peron in fiduciary relationship
4) spouse, partner, employee, or related by blood to someone above, or
5) partner, SH, employee of law firm where drafter has ownership interest

Gift to wrongdoer lapses

Blood Drafts Care Relationship or Partner

Question 18

Intestate Distribution of CP

Answer 18

Surviving spouse entitled to 1/2 of decedent’s community & quasi-community property.

Question 19

Intestate Distirbution of SP

Answer 19

Surviving spouse is entitled to either:

1) all of the decedent’s SP, if there are no surviving issues,
2) 1/2 of SP if decedent left one issue, or
3) 1/3 of SP if decedent left two or more issues

Question 20

Omitted Spouse

Answer 20

Surviving spouse not mentioned in will executed before marriage is entitled to share of SP that spouse would’ve received under intestate, but not more than 1/2 of entire SP.

Exception: if surviving spouse:

1) intentionally ommitted,
2) was given property outside of will, or
3) ommission was consistent with valid prenup

Question 21

Omitted Child

Answer 21

Surviving child not mentioned in will executed before birth/adoption is entitled to intestate share unless

1) intentionally ommitted,
2) transfer outside of will, or
3) testator left substantially all of estate w/surviving parent of the omitted child

Child not mentioned in will executed AFTER BIRTH is entitled to share of estate only if decedent was unaWare of existence/believed child to be dead

Question 22

Ademption

Answer 22

When a specific item is no longer in the testator’s possession at the time of her death, that devise fails by ademption.

Question 23

CA Exceptions to Ademption

Answer 23

1) when stock is changed to another form
2) when executor of estate sells property
3) when testator receives condemnation proceedings

Question 24

Adopted Children

Answer 24

Treated the same way as biological children for the purposes of intestate succession.

Question 25

Per Capita by Representation Distribution

Answer 25

Estate is divided into as many equal shares as there are surviving issues.

Question 26

Lapse

Answer 26

If beneficiary predecessors testator, gift lapses & returns to residual estate (whatever is not specifically devised in will)

Question 27

CA Anti Lapse Statute

Answer 27

Gift won’t lapse & will pass to deceased’s issue, BUT ONLY IF if devisee is blood relative (not spouse).

Question 28

Per Stirpes Distribution

Answer 28

Estate is distributed equally among beneficiaries. If beneficiary predeceases testator, their share passes to surviving descendants (also equally distributed among them). If no surviving descendants, remainder goes to other beneficiaries.